NLRB v. Noel Canning Presents a Non-Justiciable Political Question

JURIST Guest Columnist Victor Williams of The Catholic University of America Columbus School of Law argues that the recent legal challenge to President Obama's recess appointments to the National Labor Relations Board is a political question that should not be determined by the court but instead reversed on justiciability grounds ...

Calendared as the Supreme Court's first argument of the new year, the challenge to President Barack Obama's recess appointments to the National Labor Relations Board (NLRB) is set for January 13, 2014. Beyond its direct importance to Obama's ability to timely staff the government in an age of unprecedented confirmation obstruction, the case presents the Roberts Court with a historic opportunity to exercise genuine judicial restraint.

NLRB v. Noel Canning is an obvious continuation of the partisan and ideological efforts to defeat Obama's governance by blocking his appointments. High level vacancies have plagued the administration during its five-year tenure; Obama signed the 2012 NLRB commissions when they were required to restore the venerable labor board's quorum and legal authority. The court recently granted "extraordinary" permission to amici Minority Leader Mitch McConnell and his 44 Republican caucus members to participate by extending argument time to a full ninety minutes. Of the many "friends" of the court, only the Senate Republicans will be allowed to argue. The Senate Republicans defend both their past obstruction and the DC Circuit's ruling which invalidated the temporary commissions. Perhaps the court judged the Senate GOP's active role in the oral arguments to be not only appropriate, but necessary.

A better view—honoring the conservative principle of judicial restraint—is that the court should not even reach the merits of the partisan conflict. The judiciary finds itself in the densest of modern political thickets. The DC Circuit's ruling improperly interferes with both the president's temporary appointment authority and his removal timing discretion. Although the Solicitor General's very strong merits brief [PDF] fully exposes the lower court's many errors, the Supreme Court should reverse on justiciability grounds and exit the partisan fight. As I argued in amicus briefs to the DC Circuit and the Supreme Court [PDF], this case presents a non-reviewable political question.

Throughout our Republic's history, the court has recognized that some questions are committed by the Constitution's text to the exclusive discretion of the elected political branches. In

Clause 3 of Article II, Section 2 of the Constitution exclusively grants the executive both the responsibility to determine Senate unavailability and the discretion to sign temporary commissions. Alexander Hamilton explained in Federalist No. 67 that Clause 3 is "intended to authorize the President singly to make temporary appointments." Only the executive has the institutional competence to know when such appointment action is required for his Article II, Section 3 mandate: "[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

The political-question criteria of Baker v. Carr require the justices to find "manageable standards" to resolve the case. A judicial examination of the House Majority-Senate Minority scheduling collusion resulting in sham pro forma sessions (meant to further appointment obstruction) is particularly problematic. The court also risks disturbing "adherence" to the legitimacy of over a thousand temporary departmental, regulatory, and judicial appointments made throughout the nation's history.

The doctrine was directly applied in Goldwater v. Carter. The court rejected review of a congressional delegation's challenge to President Jimmy Carter's decision to terminate a defense treaty with Taiwan—without acquiescence of the House and/or the Senate. Then-Associate Justice William Rehnquist wrote: "Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty." Similarly, with Noel Canning, while Article II, Section 2, Clause 2 "is express as to the manner" in which the Senate participates in the confirmation of an ordinary appointment, its next clause negates "that body's participation" in the president's decision to sign a temporary commission.

Judicial review of the "textually committed" alternative appointment method is both disrespectful and conflicting. In Nixon v. United States, the court refused to review the Senate's shortcut impeachment trial process used to remove a federal judge from the bench. Exercising prudence and restraint, the nation's highest court would not even define the simple word "try" in the Impeachment Trial Clause. Neither should the court now define "the recess" or "vacancies that may happen."

Ruling that the Senate trial authority was an "important constitutional check" on the judiciary, Chief Justice Rehnquist refused to answer the political question presented by Nixon. Adjudication of Noel Canning would similarly place the "final reviewing authority with respect to [recess appointments] in the hands of the same body that the [recess appointment] process is meant to regulate." The executive's exclusive power to timely fill court vacancies is certainly an "important constitutional check" on individual courts and the judiciary as a whole.

Since George Washington filled the first court benches, presidents have used recess appointments to timely bench over 300 judges. Recess commissions have been effectively used to diversify our federal courts. Four of the first five African-American federal appellate judges were recess appointees, as were many of the first female and Jewish federal judges. President John F. Kennedy overcame the appointment obstruction of reactionary factions of his own party by recess commissioning over twenty percent of his judicial picks. Each Kennedy judge, including Thurgood Marshall, who was placed on the Second Circuit, won subsequent confirmation tenure. Just as with the Senate impeachment removal process, judges should not have final review of executive recess appointment authority.

If the court is not persuaded by its own precedent and history to avoid the partisan appointment fight, my amicus brief also raises the less "domesticated" abstention perspective promoted by the late Alexander Bickel in The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Professor Bickel advised courts to consider the strangeness, intractability, and/or momentous nature of an issue which might tend to "unbalance judicial judgment." He referenced "the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from." Our unelected judiciary, which has "no earth to draw strength from," should stay out of the partisan mud-fight of appointment obstruction.

Without jurisdictional abstention doctrines, Virginia Congressman John Marshall warned his House colleagues in 1800, the political branches might be "swallowed-up by the judiciary." In a more recent law school lecture, Associate Justice Anthony Kennedy stated it best: "Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy."

Victor Williams is a Clinical Assistant Professor of Law at Catholic University of America's Columbus School of Law in Washington, DC. He has strongly supported the appointment authority of the past four presidents, and filed amicus briefs at the DC Circuit and the Supreme Court raising the political question doctrine in NLRB v. Noel Canning.

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